Neil Armstrong is famously quoted as saying, “Well, I think we tried very hard not to be overconfident, because when you get overconfident, that’s when something snaps up and bites you.” Overconfidence in a mediation can bite us.
80% of professional truckers believe they are safer than the average driver. 94% of college professors think they are above average. Russell Korobkin, Psychological Impediments to Mediation Success, 21 Ohio St. J. on Disp. Resolution 281, 287 (2006). Lawyers and litigants tend to suffer from the same fate–having overconfidence in their likelihood of success. Studies show 44% of attorneys are overconfident in their prediction of trial success. Goodman-Delahunty, Insightful or Wishful: Lawyers’ Ability to Predict Case Outcomes, 16 Psych., Pub. Policy & Law 133 (2010). Most of my attorney friends who just read that statistic are thinking, “I would be one of the 79% who predicted my success correctly.” Attorneys are generally not very good at math either.
Mediators assist often entrenched parties who each have a greater belief in the value of their position than they ought to have, to reach a middle position. The uncertainty of a litigated outcome alone justifies considering alternatives to a litigated result. Every experienced and honest litigator can point to cases they won when they didn’t think they had a chance winning. They can also point to times when if there was any justice, they would have won, but lost. There simply is no way to accurately predict with certainty the outcome of a litigated case whether decided by a judge, a jury, or an arbitrator. Being overconfident in one’s position is a poison we all drink at times. Caution is urged, as the result may be bad for us, but disastrous for our clients.
Hon. Jay Young (Ret.) is a retired judicial officer with decades of experience presiding over complex civil litigation matters. Following a distinguished career on the bench, Judge Young now serves as a mediator, arbitrator, and court‑appointed special master, and discovery referee. Judge Young brings a disciplined, impartial, and results‑oriented approach to dispute resolution. Judge Young is based in Nevada and accepts appointments statewide and nationally, subject to agreement or court order. He can be reached at 855.777.4557 or info@armadr.com
Known for judicial temperament, analytical rigor, and practical problem‑solving, Judge Young assists litigants and counsel in resolving high‑stakes disputes efficiently and with integrity and employing best practices. He is recognized by U.S. News and World Report’s publication Best Lawyers as Arbitration Lawyer of the Year.
Confidence should not be clouded with “over confidence”. I have been mediating for 6 years for Los Angeles Superior Courts with a success rate of 97.2%…that is confidence. Mediator Johnny